Date of Filing: 08.07.2016
Date of Judgment: 25.07.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant , Nilkanta Mondal, under section 12 of the C.P Act, 1986 against the opposite parties namely 1) M/s Mira Construction 2) Tapan Kumar Gayen, 3) Biswajit Das, 4) Pabitra Kumar Chatterjee 5) Prabir Kumar chatterjee 6) Subir Kumar Chatterjee, 7) Smt. Manjushree Chatterjee, 8) Manabendra Nath Banerjee,9) Soumendra Nath Banerjee 10) Smt. Mantrila Acharya, 11) Smt. Mridula Bhattacharya, 12) Smt. Mekhala Mukherjee 13) Smt. Shyamali Chatterjee, 14) Smt. Chaitali Mukherjee, alleging deficiency in service on their part.
The case of the complainant, in short, is that O.P no.1 as a Partnership Firm being represented by O.P nos. 2 and 3 as partners entered into a Development Agreement with Proforma O.Ps who are the land owners of the property described in Schedule A of the complaint. The Development Agreement was entered into between them on 14.6.2006. Subsequently O.P nos. 1,2 and 3 entered into an Agreement for Sale dated 12.9.2009 with the complainant and agreed to sell the flat described in Schedule B of the Agreement at a total consideration of Rs.5 lacs. Complainant has paid Rs.4 lac out of the said total consideration of Rs.5 lac. As per the terms of the Agreement complainant was supposed to pay balance consideration money of Rs.50,000/- on completion of the flat and remaining Rs.50,000/- at the time of registration of the deed of conveyance. But the O.P nos. 1,2 and 3 as per terms of the agreement failed and neglected to deliver the possession within 6 months from the date of the agreement. However, on the request of the complainant finally the O.Ps delivered temporary possession of a flat with lesser area but till date O.Ps have not completed construction of the said flat nor have delivered possession of the entire area as agreed of 500 sq.ft. The complainant was always ready and willing to pay the balance consideration price but he has not received any intimation from the O.Ps about the completion of the said flat measuring 500 sq.ft. So, a demand notice was sent by the complainant through his Ld. Advocate on 18.11.2015 and in response to the said notice O.P nos. 2 and 3 sent a reply through their Ld. Advocate stating that since market price of the flat has increased , complainant has to pay balance consideration price as per the present market value. So, Complainant filed the present case , praying for directing the O.Ps to complete the construction of the flat described in Schedule B in the agreement , to deliver flat with actual area of 500 sq.ft as per the agreement, to direct the O.Ps to execute nd register the deed of conveyance in favour of the complainant, to pay compensation of Rs.1 lac and litigation cost of Rs.25000/-.
On perusal of the record it appears that O.P nos. 1,2 and 3 are contesting the case by filing written version denying and disputing the allegations , contending inter alia that on 15.8.2019 complainant came with a draft agreement for sale requesting the O.Ps to sign on payment of Rs. 1,50,000/-. But as per discussions with the owners , the complainant was to pay the full consideration price of Rs.5 lac at a time. The O.Ps put their signatures in the agreement in good faith and instead of Rs. 1,50,000/- as stated in the agreement as earnest money, complainant paid only a sum of Rs.50,000/- at the time of execution and signing of the agreement. O.Ps already delivered khas and vacant possession of the flat in question measuring about 500 sq.ft. As per the Agreement dated 12.9.2009 it was agreed between the parties that on payment of the entire consideration money possession would be delivered but on good faith O.Ps delivered peaceful possession of the flat in question to the complainant. But the complainant failed to make full payment of consideration price. Thus, O.P nos. 1,2 and 3 have prayed for dismissal of the case.
O.P no.6 is also contesting the case by filing a separate written version contending inter alia that a Development Agreement was entered into between the owners ( Proforma O.P nos. 4 to 14 herein) with O.P nos. 1,2 and 3 , the developers. But O.P nos. 1,2 and 3 neglected to hand over the owners ‘allocation . The flat which is the subject matter in this case lies with the developers ‘allocation and the proforma O.P no.6 has not received any consideration money and was no way related with the transaction between the complainant and the O.P nos. 1,2 and 3.
Other O.Ps have not taken any step . So, case has been heard exparte against them.
During the course of the trial evidence was filed b y the respective parties followed by filing questionnaire and reply thereto and ultimately argument has been advanced and also the BNA has been filed.
So following points require determination:-
- Whether there has been deficiency on the part of the Opposite parties?
- Whether the complainant is entitled to the reliefs as prayed for?
Decision with reasons:
Both the points are taken up together for discussion to order to avoid repetition.
In order to substantiate his claim that by an agreement for sale complainant agreed to purchase the flat, complainant has filed copy of the agreement for sale entered into between the parties dated 12.09.2009. It is an admitted case as appears from the written version filed by O.P no.6 as well as O.P nos. 1,2 and 3 that a development agreement was entered into between the O.P nos. 4 to 14 being the owners with the O.P nos. 1,2 and 3 being the developers and consequent upon the said development agreement , O.P no.1 being represented by its partners i.e O.P nos. 2 and 3 admittedly entered into an agreement for sale with the complainant. However, they have contended that they have signed in the agreement in good faith. It is specific contention of the O.P nos. 1,2 and 3 that even though in the agreement it has been stated that an amount of Rs. 1,50,000/- has been paid as earnest money but actually complainant paid only Rs. 50,000/- at the relevant point of time.
However, on a careful scrutiny of the written version filed by O.P nos. 1,2 and 3 it appears that payment of total sum of Rs.4 lac by the complainant has not been denied and disputed. As per the schedule of the payment mentioned in the agreement entered into between the parties dated 12.9.2009, the rest of the amount of Rs. 50,000/- was to be paid after the completion of the flat in all respect and remaining Rs.50,000/- was to be paid at the time of registration. Admittedly complainant has not paid the said sum of Rs. 1 lac.
O.P nos. 1,2 and 3 have also contended that as per today’s market value the price of the flat is more and so complainant is liable to pay the same. But in this context it may be mentioned that the O.P nos. 1,2 and 3 are bound by the terms and conditions of the agreement entered into between them and the complainant, on 12.9.2009. So far their claim of putting signature in good faith and that they were not in knowledge of the terms in the agreement is devoid of any merits because before this Commission, barring the said agreement for sale, there is no other materials to substantiate such claim. If that be so, then the O.P nos. 1,2 and 3 as well as owners are liable to execute the deed of conveyance in favour of the complainant on receiving the balance consideration price of Rs.1 lac by the O.P no 1 to 3.
The complainant has also claimed that he is in possession of a flat which is not 500 sq.ft as agreed and that the area is less . It appears from the record that an Engineer Commissioner was appointed on the prayer of the complainant and he has submitted his report on measurement of the subject flat. On perusal of his report filed on 29.7.2019 it appears that according to the Engineer Commissioner generally speaking a percentage of the floor area and covered area is added to the floor space which varies from 15% to 25% in view of common parts. Ld. Engineer commissioner on measurement found the carpet area 356.28 sq.ft & covered area as 405 sq.ft. So, in his opinion, if he considers 20% of the super built up area, then the total area will be 481 sq.ft of the subject flat.
It may however be pointed out that complainant is already in possession of the flat in question and he is enjoying electricity by paying the electric bill and also paying the tax to the KMC. He has been shown in the KMC tax receipt as the person liable to pay the tax. So, apparently he has been enjoying the flat since long. It may be mentioned here that complainant has not stated the specific date in the complaint as to since when he is in possession of the flat . Complainant has prayed to deliver the said flat with actual and entire super built up area of 500 sq.ft as per agreement. But since he has been possessing flat as highlighted above since long, there cannot be any such direction because the area cannot be increased at this stage.
Apart from this, the agreement itself is very categorical that flat was not exact 500 sq.ft super built up area but it has been stated that super built up area of 500 sq.ft a little more or less. Complainant has not claimed anywhere for return of sum for any excess payment towards the alleged shortfall. In such a situation complainant is only entitled to relief of directing the O.Ps to execute and register the deed of conveyance in favour of the complainant in respect of the subject flat as per agreement dated 12.9.2009. The complainant has also prayed for compensation but in the given situation of this case, as the complainant ha also not paid the rest of the amount of Rs. 1 lac even though only Rs.50,000/- was to be paid at the time of registration, we do not find any justification to pass any order of compensation. However, complainant is entitled to the litigation cost of Rs.12000/- as he has been compelled to file the case.
Hence,
ORDERED
That CC/294/2016 is allowed on contest against O.P nos. 1, 2 and 3 and O.P no.6 and allowed exparte against other O.Ps.
The O.Ps are directed to execute and register the deed of conveyance in respect of the flat in favour of the complainant as per agreement for sale dated 12.9.2009 within 3 months from this date on payment of balance consideration price of Rs. 1,00,000/- by the complainant to the O.P no. 1 to 3.
O.P nos. 1,2 and 3 are further directed to pay litigation cost of Rs. 12000/- to the complainant within the aforesaid period of 3 months.
